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Digicel (PNG) Ltd v Kuman [2025] PGSC 51; SC2750 (23 June 2025)

SC2750

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 155 OF 2023 (IECMS)

BETWEEN:
DIGICEL (PNG) LIMITED
Applicant

AND
MICHAEL KUMAN
Respondent

WAIGANI: POLUME-KIELE J, LIOSI J, CAREY J
23 JUNE 2025

SUPREME COURT - Practice & Procedure- Applicant’s Application for Leave to Appeal Dismissed by Single Supreme Court – Writes to Registrar of Supreme Court Requesting same Application to be heard before Full Court – Order 11 Rule 27 – Supreme Court Rules – No formal Application filed Pursuant to Section 10 (2) – Supreme Court Act – Court’s Jurisdiction not invoked

SUPREME COURT- Practice & Procedure - Manner and form of Application – Order 7 Rules 4 (4) And Form 7 - Applicant failed to comply with Order 7 Rule 4 (4) and Form 7 of the Supreme Court Rules – Failed to set out the Nature of Case, Questions involved, and Reasons why Leave should be given Have not been set out – Application incompetent and dismissed.

Cases cited
Delta Construction Limited v National Superannuation Fund Ltd (2024) SC2585
Joel Luma v John Kal and Ors (2014) SC1608
Philip Vitolo v Mararea Land Group Incorporated and Ors (2022) SC2298
Mathew Sisimolu and 1 Or v Philip Kende and Ors (2022) SC2267

Counsel
Mr. W. Mininga for the applicant
Mr. C Gagma for the respondent

EX TEMPORE RULING

1. BY THE COURT: On 24 June 2024, an application seeking leave to appeal was heard by his Honour Makail J sitting as a single Supreme Court judge. The application was dismissed.
   
2. Being aggrieved by that decision, on 27 June 2024, the applicant, wrote to the Registrar, Supreme Court requesting that the application for leave be heard by the full Court pursuant to Section 10(2) of the Supreme Court Act as stipulated under Order 11 Rule 27 of the Supreme Court Rules.
   
3. Section 10 of the Supreme Court Act provides that:
   
   • (1) Any power of the Supreme Court under this or any other Act –
     • (a) to give leave to appeal; or
       • (b) to extend time within which notice of appeal or an application for leave to appeal may be given; or

(c) to admit an appellant to bail,

may be exercised by a Judge in the same manner as it may be exercised by the Court

(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1) the appellant may apply to the Supreme Court to have the matter determined by that Court

4. Meanwhile Order 11 Rule 27 of the Supreme Court Rules provides that where a Judge refuses an order sought in an application pursuant to Section 10 (1) of the Act, provided that a written request in that behalf is served on the Registrar within 14 days of the order refusing relief.
   

“27. Where a Judge refuses to order sought on an application pursuant to Section 10 (1) of the Act, that application shall not dismissed, but shall remain on foot, and the same application shall may be moved before the Court pursuant to Section 10 (2) of the Act , provided that a written request in that behalf is served on the Registrar within 14 days of order refusing the relief”

5. Given this request, it is common ground that this Court is constituted to hear afresh an application seeking leave to appeal. However, on the date of the hearing, the Court it is apparent that there was no application before the Court seeking to invoke the court’s jurisdiction to hear and determine its application seeking leave to appeal.
   
6. Essentially, the applicant was required to make an application in compliance with s 10(2) of the Supreme Court Act and Order 11 Rule 27 of the Supreme Court Rules to have the same leave application relisted for hearing afresh but before the full court.
   
7. Whilst we note that the applicant had written to the Registrar of the Supreme Court requesting that the same application seeking leave to appeal be relisted for hearing. We find however that there are no documentation before the Court indicating that the hearing shall be de novo (or hearing afresh of the leave application): see Delta Construction Limited v National Superannuation Fund Ltd (2024) SC2585; Joel Luma v John Kal and Ors (2014) SC1608, Philip Vitolo v. Mararea Land Group Incorporated and Ors (2022) SC2298, and Mathew Sisimolu and 1 Or. v. Philip Kende and Ors (2022) SC2267.
   
8. This is because, the power conferred by s.10 (2) of the Act upon an appellant on refusal by a single Judge of the Supreme Court to give leave to appeal under s.10 (1) of the Act, must be exercised afresh, without reference to the decision of the single Judge for determination by the full Supreme Court. Further, an applicant must file a fresh application to the full Court. Section 10 (2) of the Act does not give power to the full Court of the Supreme Court to "re-instate" or "set aside" a dismissed or refused application for leave to appeal. Here, the onus lies on the unsuccessful applicant to file a fresh application for leave to appeal; see State v Tuap (2004) SC765.
   
9. Furthermore, under s.10 (2) of the Act, a fresh application for leave to appeal must be made within the 40 days’ time limit prescribed by s. 17 of the Act. In the present case, no such application was filed within the 40-day time limit. In addition, no documentation such as the application seeking leave to appeal, and supporting documentations such as a copy of the decision of 24 June 2024, a copy of the Court transcripts and affidavit deposing to the letter of request to the Registrar of the Supreme Court to relist this matter are some of the relevant documents which should accompany the application seeking leave to appeal.
   
10. In this current matter, no such documentation had been filed and relied upon by the applicant. It must be pointed out that the only document which the applicant relies on is his submission which was filed on 19 June 2025 (Document No. 26).
    
11. In the case of Vitolo v Marara (2022) SC2298, an application had been moved before the full court, following the refusal by a single Judge of the Supreme Court of the appellant’s application for leave to appeal, the appellant applied again to the full court. The first respondent objected to the competency of the application contending it was not in accordance with the mandatory requirements of the relevant Supreme Court Rules, namely Order 11 Rule 27, to properly invoke the jurisdiction of the Court. The Court held amongst others that:
    

“(1) ...

(2) Where application for leave to appeal made to a single Judge of the Supreme Court under s10(1) of the Supreme Court Act is refused, the same application may be made to the full court (the Supreme Court) pursuant to s10(2).

(3) The procedure for application to the full court is provided in O 11 r 27 of the Supreme Court Rules.

(4) Pursuant to O 11 r 27 of the Supreme Court Rules, the applicant must serve a written request to the Registrar within 14 days of the order refusing the application made under s 10(1), for a hearing of the same application by the full court.

(5) The mandatory terms of O 11 r 27 must be strictly complied with to properly invoke the jurisdiction of the full court, and failure to do so renders the application incompetent: see The State v. Transferees (2016) SC1488”

Competency of the Application

12. Further it is common ground that there is a lack of a formal application before the Court brought pursuant to Section 10 (2) of the Supreme Court Act and Order 11 Rules 27 of the Supreme Court Rules to hear afresh the application for leave to appeal.
    
13. Order 11 Rule 27 gives a party who is dissatisfied with a direction or order given by a single Judge of the Supreme Court a right to have that direction or order heard afresh by the Full Court. At the same time, it confers power or jurisdiction upon the Full Court. The exercise of the power under Order 11 Rule 27 is subject to the requirements as specified under Section 10 (2) of the Supreme Court Act which provides:
    

“(2) Where a Judge refuses an application in relation to a matter specified in Subsection (1) the appellant may apply to the Supreme Court to have the matter determined by that Court”

14. We are of the view that both Section 10 (2) and Order 11 Rule 27 should be read together. We reiterate that the right given in Rule 27 must be exercised in accordance with the mandatory requirements of Section 10 (2) of the Supreme Court Act. We go further to say that an application under Section 10 (2) of the Act must be made within the 40-day time period specified under Section 17 of the Supreme Court Act. In this case, no formal application has been filed within the 40-day time period specified under s 17 of the Supreme Court Act and moved before the Court seeking leave to appeal.
    
15. It is therefore our considered view, that the application under Order 11 Rule 27 is incompetent because the requirements specified under Section 10 (2) of the Act have not been complied with. For that reason, the jurisdiction of this Court has not been correctly and properly invoked. The application is therefore incompetent.
    

Orders

(1) The mandatory terms of Order 11 Rule 27 of the Supreme Court must be strictly complied with to properly invoke the jurisdiction of the full court, and failure to do so renders the application incompetent.

(2) The applicants application for leave to appeal is incompetent, abuse of the Court’s process and is dismissed.

(3) Cost of and incidental to the application is awarded in favour of the respondent and such cost to be taxed, if not agreed.

________________________________________________________________
Lawyer for the applicant: Mr. W. Mininga
Lawyers for the respondent: Gagma Legal Services